Sort

• 14 Feb 2022

• No

  Complex

  No. When deciding how to approach a parental request under EA1996 s9, it is only the marginal (i.e. additional) cost of the placements under consideration which is relevant; thus, if the taxi is already provided, or a learning support assistant could look after a second CYP at no extra cost, then there is no additional public expenditure: Oxfordshire v GB [2001] EWCA 1358#16.

  But note that a specific evaluation is needed, particularly if the cost balance is critical to the choice between two placements which have been found to be appropriate. Accordingly, where transport was needed, it could not be assumed that the marginal cost of transporting the child was nil where a taxi was already covering that route: evidence was needed as to how the price was affected, if at all, by the number of children carried. The FTT should have identified the issues it was considering and then expressly dealt with them: (1) what would be the cost of transport without an escort? (2) what would be the cost of the escort? (3) would an additional vehicle be required and, if so, at what cost? W v LB Hillingdon [2005] EWHC 1580#26.

  When considering relevant "public expenditure" for the purposes of EA1996 s9 the LA’s budgetary arrangements for an individual school would usually be a sensible starting point. If those arrangements made provision for the payment of an age weighted pupil unit (AWPU) to the school then there was no reason why the FTT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, were a fair reflection of the cost to the public purse of educating the child at that school: EH v Kent [2011] EWCA Civ 709.

  Additional expenditure by a maintained school arising from placing a child there is (as a matter of law) additional expenditure by the LA even where the LA has in place a scheme of delegation which means that it would not provide any extra funds to the school if the child was placed there: X City Council v SENDIST, AB, MB & GB [2007] EWHC 2278 #12-13.

  Under the “new” funding framework, when the LA determines budget shares for maintained schools, it must include £10,000 per place reserved for children with SEN (School and Early Years Finance (England) Regulations 2020 r14). It follows that, generally, where there is a vacancy the £10,000 place funding is not treated as an additional cost[DW1] . However, that is only the starting point for the evaluation. If the place review mechanism is such that, in fact, the decision on placement will impact on whether or not the £10,000 is paid now or in the future (albeit manifested in the allocation of a “place”) then that will become relevant for EA1996 s9 purposes: Hammersmith & Fulham LBC v L & F [2015] UKUT 523 (AAC) #126-128. This position applies to the later versions of the regulations as well (Hammersmith & Fulham LBC v L & F [2015] UKUT 523 (AAC) was decided under the 2013 Regs): P v Worcestershire CC [2016] UKUT 120 (AAC).

  The comparison exercise for unreasonable public expenditure is between the fees and advantages of the schools which are proposed – see EC v North East Lincolnshire [2015] UKUT 648 (AAC) #11, where the parents’ argument was rejected that account should be taken of savings the authority made when the child had previously not been attending school, and the high fees of the school where the child previously attended. 

  Where a parent refuses to allow their child to attend the LA proposed school, if properly evidenced the “saved cost” of prosecuting the mother in relation to non-attendance could be taken into account. However, the “wasted cost” of the LA placement could not be taken into account where the LA would not carry on paying the cost of the placement if the child did not go there: LB Richmond upon Thames v AC (SEN) [2017] UKUT 173 (AAC) #21, 25.

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

0 This is helpful

|

Comment

Post